(dissenting) — The majority holds that Ecology lacked the authority to issue cease and desist orders to the Irrigators. I dissent.
The cease and desist orders Ecology issued were aimed at regulating the Irrigators' perceived impairment of the water rights of the Ranchers. The orders therefore rested on a prior assessment that the Ranchers' rights were senior to those of the Irrigators. According to the majority, Ecology's prior assessment of the priority of rights was invalid because it was outside the statutorily authorized general adjudication procedures. I disagree.
*235Ecology Action Not an Adjudication
Ecology's action was not an adjudication as defined under RCW 90.03.110-.245; Ecology made a tentative assessment of rights for the purpose of regulating the diversion of water from Sinking Creek. A general adjudication under the water code, RCW 90.03, determines the rights of all those claiming water rights in a given body of water, and the priority of each right is determined relative to all others. RCW 90.03-.120, .200. That did not occur here. Ecology's action did not affect all water rights claimed in the water resource; and even for those rights it did affect, it did not determine the priority of each relative to the others.
Ecology's action did not constitute a general adjudication even in the most basic sense. As a general proposition, adjudication of an issue determines legal rights so as to preclude relitigation of that same issue. Ecology's tentative assessment of the priority of rights between the Irrigators and the Ranchers hád no preclusive effect on later litigation, as would an adjudication. If a general adjudication of water rights in Sinking Creek is ever conducted, Ecology's tentative assessment here would have no preclusive effect whatsoever on those proceedings. It is true that decisions of administrative agencies may be accorded preclusive effect in subsequent litigation. State v. Dupard, 93 Wn.2d 268, 275, 609 P.2d 961 (1980). This requires, however, that the agency follow procedures not substantially different from court procedures. Dupard, at 275. Because Ecology's assessment of priorities here was made in a fashion substantially different from a court proceeding, preclusion could not occur. What occurred was simply a tentative assessment of rights for the purpose of a regulatory action.
Moreover, this court has previously recognized that such tentative assessments are not adjudications. In Funk v. Bartholet, 157 Wash. 584, 289 P. 1018 (1930), the Supervisor of Hydraulics — the predecessor to the Director of Ecology — issued permits to a certain corporation to appropriate waters. An objection to the issuance of the permits was raised on the *236ground that issuance of the permits effectively adjudicated property rights. Bartholet, at 592-93. This court rejected this contention and declared the Supervisor's action was not an adjudication of any rights. Bartholet, at 594. The court explained that in issuing the permits, "the supervisor is called upon to tentatively determine" such questions as whether the appropriation will conflict with any existing rights, but that any such "tentative decision" is not an adjudication of private rights. Bartholet, at 594; see also Stempel v. Department of Water Resources, 82 Wn.2d 109, 115-16, 508 P.2d 166 (1973) (determinations of existing rights during issuance of water use permits are tentative and not adjudications); United States v. State Water Resources Control Bd., 182 Cal. App. 3d 82, 103, 227 Cal. Rptr. 161 (State's estimate of whether there is sufficient surplus water to issue water permit is not an adjudication of water rights), review denied (Sept. 18, 1986). Although courts preside over general adjudications and ultimately review administrative decisions upon appeal, we should not judicially usurp Ecology's primary regulatory role.
If Ecology's action in making the tentative assessment of rights was not an adjudication, the more fundamental question emerges as to whether Ecology has the statutory authority to take the kind of regulatory action it took here when there has yet been no adjudication and when the water rights affected are in dispute. I would hold that it does.
Statutory Authority of Director
RCW 43.21A.064(3) provides that the Director of Ecology "shall regulate and control the diversion of water in accordance with the rights thereto". This statutory authority is plenary; the Director's power is not limited to the regulation of rights only as determined in a general adjudication under RCW 90.03.110-.245. Furthermore, RCW 43.27A.190, the statute specifically authorizing cease and desist orders, likewise contains no limiting language. It authorizes Ecology to issue regulatory orders "whenever it appears to the department that a person is violating or is about to violate any of *237the provisions" of various water statutes, including the water codes, RCW 90.03 and RCW 90.44.
The absence of any limiting language in these authorizing statutes is rendered more significant by the fact that the Legislature did include express limiting language in other contexts. For example, RCW 90.08.040 provides:
Where water rights of a stream have been adjudicated a stream patrolman shall be appointed by the director of the department of ecology upon application of water users having adjudicated water rights in each particular water resource making a reasonable showing of the necessity therefor . . .
(Italics mine.) Thus, where the Legislature wanted to give regulatory authority over adjudicated water rights only, it did so explicitly. This court will not, under the guise of construction, read into a statute matters that are not there. E.g., Progressive Animal Welfare Soc'y v. UW, 114 Wn.2d 677, 688, 790 P.2d 604 (1990). The majority's position incorrectly implies that RCW 43.21A.064(3) and RCW 43.27A-.190 include a condition that the Director of Ecology may regulate water rights where determined through a general adjudication and not otherwise.
The majority correctly points out that its decision will not provide for a "cheap and easy" water adjudication solution. Majority, at 225. Prohibitively expensive and interminable litigation is what the majority has fashioned as a solution, and to no purpose. The relief sought by neither party was for a general adjudication, and yet that is now the only relief which the majority opines is available. The Director of Ecology, upon reading the majority opinion, will surely scratch her head in wonderment that she has the responsibility for issuance of water use permits but no authority to regulate those permits. That authority, according to the majority, belongs exclusively to the courts.
Interpreting Ecology's power to regulate water rights as encompassing adjudicated water rights solely is bad policy. At the present time, only a small fraction of Washington's waters have been adjudicated. For example, the Acquavella *238litigation involves a general adjudication of water rights in the Yakima River. This litigation began in 1977, involves thousands of parties, and has twice appeared before this court. See Department of Ecology v. Acquavella, 100 Wn.2d 651, 674 P.2d 160 (1983) {Acquavella I); In re Determination of Rights to Use of Surface Waters, 121 Wn.2d 257, 850 P.2d 1306 (1993). The general adjudication process continues. Its complexity and longevity demonstrate why it is bad policy to limit Ecology's regulatory powers to adjudicated water rights. Doing so leaves the great majority of the state's waters outside of Ecology's regulatory authority until there is a general adjudication as to those waters.
In addition, the majority's position leads to absurdity. Ecology unquestionably may make a tentative determination as to existing rights when issuing a water use permit. See Funk v. Bartholet, 157 Wash. 584, 594, 289 P. 1018 (1930). According to the majority, however, Ecology then may not again make such a tentative determination until a general adjudication has been conducted. Thus, Ecology might issue a permit with the condition that the appropriation is subject to existing rights; but if a week later it became clear that water use under the permit was impairing a senior right, Ecology could not act to protect the senior water user because that would constitute an adjudication of the water rights involved. That is an absurd result and should be avoided. See, e.g., State ex rel. Faulk v. CSG Job Ctr., 117 Wn.2d 493, 500, 816 P.2d 725 (1991) (statutes should be interpreted so as to avoid absurd results).
The majority's analogy to bankruptcy law is most appropriate. The requirement that the courts exclusively determine conflicting water rights claims in the format of a general adjudication shall surely result in the application of the bankruptcy law to the estates of the Ranchers and Irrigators as they pay to proceed down that yellow brick road leading to general adjudication. Not all roads need to lead to Rome, or to Oz, or to a general adjudication.
I would hold that Ecology has the statutory, authority to regulate all water rights, even when no general adjudication *239has been made and the priority of rights is in dispute. Such regulatory action inherently involves tentative assessments as to the priority of rights, but such assessments have no preclusive effect and are not adjudications of those rights.
Public Trust Doctrine
The majority's treatment of the public trust doctrine is also unsatisfactory. The public trust doctrine should be recognized as providing an alternative source of authority for the kind of action Ecology took here.
I recognize that the restriction of the public trust doctrine to navigable waters is well founded in precedent. Nonetheless, the navigability requirement is not inherent in the doctrine and should be abandoned. This becomes clear when one considers the history and theory of the public trust doctrine.
The public trust doctrine is a collection of common law principles recognizing that some types of natural resources are held in trust by government for the benefit of the public. W. Rodgers, Environmental Law § 2.16, at 170-71 (1977). The doctrine has been recognized since ancient times. The Institutes of Justinian, a compilation and restatement of the Roman law first published in 533 A.D., states: "[T]he following things are by natural law common to all — the air, running water, the sea and consequently the sea-shore." J. Inst. 2.1.1 (J. Moyle trans. 3d ed. 1896). See also Stevens, The Public Trust: A Sovereign's Ancient Prerogative Becomes the People's Environmental Right, 14 U.C. Davis L. Rev. 195, 196-97 (1980-1981). Similarly, a statement of regional French law in the 11th century declared that " 'the public highways and byways, running water and springs, meadows, pastures, forests, heaths and rocks . . . are not to be held by lords, . . . nor are they to be maintained ... in any other way than that their people may always be able to use them.' " Sax,-Liberating the Public Trust Doctrine from Its Historical Shackles, 14 U.C. Davis L. Rev. 185, 189 (1980-1981) (quoting M. Bloch, French Rural History 183 (1966)). The principle was also recognized under the common law at least as early as medieval *240times, but with the modification that the resources declared to be "common to all" in the civil law were thought of as being inalienably owned by the sovereign — inalienable because they relate to the public good. Stevens, 14 U.C. Davis L. Rev. at 197-98.
The trust aspects of the public trust doctrine are manifested in the protection extended to those resources encompassed within the doctrine. The doctrine protects "against unfair dealing and dissipation", and it demands "results that are consistent with protection and perpetuation of the resource." W. Rodgers § 2.16, at 172. Application of the doctrine requires analysis of what public resources are committed to what public uses.
Historically, as the majority states, the public trust doctrine has been most commonly applied in relation to the public's interest in commerce over navigable waters and shorelands. See generally W. Rodgers § 2.16, at 172. The doctrine is not strictly limited to such contexts, however, either in application or in theory.
For example, the United States Supreme Court in Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 476, 98 L. Ed. 2d 877, 108 S. Ct. 791 (1988) recognized that "the States have interests in lands beneath tidal waters which have nothing to do with navigation." These interests include "bathing, swimming, recreation, fishing, and mineral development." Phillips Petroleum, at 482. The Court stated that "[i]t would be odd to acknowledge such diverse uses of public trust tidelands, and then suggest that the sole measure of the expanse of such lands is the navigability of the waters over them." Phillips Petroleum, at 476. In light of this recognition, the Court held that the geographic scope of the public trust doctrine over tide waters and the lands beneath is determined not by navigability, but by the ebb and flow of the tide. Phillips Petroleum, at 479-85. See generally Nat'l Pub. Trust Study, Putting the Public Trust Doctrine to Work 134 (1990) (discussing Court's rejection of navigability in Phillips).
*241State courts as well have recognized the erosion of navigability and commercial interests as requirements for application of the public trust doctrine. In National Audubon Soc'y v. Superior Court, 33 Cal. 3d 419, 658 P.2d 709, 189 Cal. Rptr. 346, cert. denied sub nom. Los Angeles Dep’t of Water & Power v. National Audubon Soc'y, 464 U.S. 977 (1983), the California Supreme Court applied the doctrine to nonnavigable tributaries of a navigable lake. In People ex rel. Baker v. Mack, 19 Cal. App. 3d 1040, 1046, 97 Cal. Rptr. 448 (1971) (quoting Lamprey v. State, 52 Minn. 181, 200, 53 N.W. 1139 (1893)), the court pointed out that
there are innumerable waters — lakes and streams — which will never be used for commercial purposes but which have been, or are capable of being used, 'for sailing, rowing, fishing, fowling, bathing, skating' and other public purposes, and that it would be a great wrong upon the public for all time to deprive the public of those uses merely because the waters are either not used or not adaptable for commercial purposes.
This court also has extended the public trust doctrine beyond navigational and commercial interests to include "incidental rights of fishing, boating, swimming, water skiing, and other related recreational purposes". Wilbour v. Gallagher, 77 Wn.2d 306, 316, 462 P.2d 232, 40 A.L.R.3d 760 (1969), cert. denied, 400 U.S. 878 (1970). Moreover, in Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987), cert. denied, 486 U.S. 1022 (1988), this court observed that "[t]he trust's relationship to navigable waters and shorelands resulted not from a limitation, but rather from a recognition of where the public need lay." Orion Corp., at 640 (citing Reed, The Public Trust Doctrine: Is It Amphibious?, 1 J. Envtl. L. & Litig. 107, 111 (1986)).
This court's observation in Orion accurately expresses the underlying concept of the public trust doctrine. As explained by the leading commentator on the public trust doctrine, Professor Joseph Sax, the doctrine is closely tied to one of the most basic concerns of the legal system, namely, the protection and maintenance of social stability. Just as the law of property rights protects stability in ownership, and *242the criminal law protects stability within a community, just so, explains Professor Sax, "[t]he central idea of the public trust is preventing the destabilizing disappointment of expectations held in common but without formal recognition such as title." Sax, 14 U.C. Davis L. Rev. at 188. In other words, the public trust doctrine requires the protection and perpetuation of natural resources. This functions to prevent social crises that otherwise would arise due to the sudden depletion of those natural resources necessary for the stable functioning of society. Sax, 14 U.C. Davis L. Rev. at 188-89. In short, at its most basic level, the scope of the public trust doctrine is defined by the public's needs in those natural resources necessary for social stability.
Restriction of the public trust doctrine by the concept of navigability is ultimately artificial and absurd. In some jurisdictions, "navigability" means nothing more than that a canoe or rowboat can float on the waterway. E.g., Southern Idaho Fish & Game Ass'n v. Picabo Livestock, Inc., 96 Idaho 360, 362, 528 P.2d 1295 (1974) (navigability includes any waterway capable of being navigated by rowboat for pleasure purposes); Lamprey v. State, 52 Minn. at 200 ("so long as these lakes are capable of use for boáting, even for pleasure, they are navigable"); Muench v. Public Serv. Comm'n, 261 Wis. 492, 506, 53 N.W.2d 514, 55 N.W.2d 40 (1952) (a navigable waterway is any water "which is capable of floating any boat, skiff, or canoe, of the shallowest draft used for recreational purposes"). Presumably the next step is to an air mattress, and then to an inner tube. It is time to recognize that the public's interest is in water as an essential natural, finite resource, not in water just as a public highway or playground. Application of the public trust doctrine should not depend on artificial concepts of navigability. That is not to say that the application of the public trust doctrine is without consideration of vested rights in private parties. The issue of takings and just compensation is one that must be appropriately addressed.
*243Conclusion
I believe Ecology has the statutory authority to issue the cease and desist orders, and additionally that Ecology has the duty under the public trust doctrine to protect such public interests as exist in the waters of Sinking Creek. The majority's decision lacks a sound legal basis, will seriously and improperly interfere with Ecology's ability to regulate water rights, and ignores the interest of the people of this state in the essential natural resource of water. The decision is bad law and bad policy.
Tb those who cry out that the majority's unsettling opinion constitutes the end of civilization as we know it, or that the sky is truly falling, do not despair. The Legislature must now address itself to a comprehensive water policy defining duties, assigning responsibility to perform those duties, and providing funding necessary to carry out those duties. The Legislature must consider whether western water law meets today's societal needs, given the understanding that water is not an infinite resource. The Legislature must now examine the water resources of this state and determine, for example (1) who controls those resources; (2) the extent of all government allocations of those water resources; (3) the present water usage from all sources, allocated and unallocated; (4) what water resources will be available in the future; (5) what future water needs will be; (6) how water allocations should be made; (7) what public interest is involved in water allocations and use; and, (8) if water allocations are to be changed as to existing users, whether under existing law that constitutes a taking for which compensation must be paid.
The majority's opinion provides a legislative opportunity to address the difficult and politically sensitive issues involving allocation of water resources. Given the imperative that resources must be properly managed for all users — public, agricultural, industrial, hydroelectric, fish and wildlife, recreational — the majority's opinion may lead to compre*244hensive, well-considered water resource management that is workable and understandable.
Utter, J., concurs with Guy, J.
After modification, further reconsideration denied November 1, 1993.